Mere Smell Of Alcohol Cited In Post-Mortem Report No Ground To Deny Compensation In Accident Case: Calcutta High Court

The Calcutta High Court has held that mere presence of alcoholic smell cited in the post-mortem report cannot be the ground to deny compensation to the heirs of the deceased.

The Court was considering an Appeal against a judgement and award passed by the Additional District Judge.

The Bench of Justice Biswaroop Chowdhury held, "Upon hearing the Learned Advocate and considering the facts of the case this court is of the view that when a person drives the vehicle in drunken condition in violation of a condition under Section 185(A) of the Motor Vehicles Act, he may be prosecuted under law and when he meets with an accident that may be a ground of contributory negligence, but when the person who met with an accident is dead and alleged to be drunk the heirs of the said victim cannot be deprived of compensation because the said person was the fit person if alive to defend his case as to whether he was in drunken condition and violated section 185A of the Motor Vehicles Act 1988 but when he is dead there is no such scope thus the plea cannot be taken...."

The Appellant was represented by Advocate Rajdeept Bhattacharya, while the Respondent was represented by Advocate Amit Ranjan Roy.

The premises of the challenge was that the Trial Court erred in awarding compensation when the victim was in a drunken state.  

Counsel for the Appellant drew Court's attention to the post mortem report wherein it was stated that stomach had contents of alcoholic smell. He further submitted that the motor cycle in which the victim was travelling was not insured and thirdly the compensation awarded in excessive.

On the other hand, Counsel for the Claimants submitted that mere alcoholic smell from the stomach of deceased person will not be a ground to refuse compensation. He submitted that under Section 185(A) of the Motor Vehicles Act whoever while driving or attempting to drive a motor vehicle has in his blood alcohol exceeding 30 mg per 100 ml of blood detected in a test by a breath analyser shall be punished.

It was further submitted that unless the conditions provided under Section 185(A) of the Motor Vehicles Act is fulfilled, it cannot be said that the driver has committed an offence. The Counsel averred that in the instant case as the victim is dead and cannot defend himself, the plea of drunkenness cannot be taken, to refuse compensation.

The Court accepted the arguments of the Counsel for the Claimants and held that mere presence of an alcoholic smell cited in the post-mortem report cannot be the ground to deny compensation to the heirs of the deceased.

The Appeal was accordingly dismissed.

Cause Title: The New India Assurance Co. Ltd. v. Sabita Das & Ors. (2025:CHC-AS:2250)

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